Citation Nr: 0121614
Decision Date: 08/27/01 Archive Date: 09/04/01
DOCKET NO. 00-18 769A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
Entitlement to an initial rating in excess of 10 percent for
right knee disability.
Entitlement to an effective date earlier than January 21,
1998, for a grant of service connection for right knee
disability.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
R. Giannecchini, Associate Counsel
INTRODUCTION
The veteran had verified active military service from October
1976 to November 1979. This matter came to the Board of
Veterans' Appeals (Board) on appeal of an October 1999 rating
decision of the Department of Veterans Affairs (VA) Regional
Office (RO) in St. Petersburg, Florida. The Board
additionally notes that in September 1994, the veteran filed
a claim for service connection for a left knee disability.
It does not appear this issue has been adjudicated, and thus,
it is referred to the RO for appropriate action.
Furthermore, in a statement to the Board, dated in April
2001, the veteran asked for reconsideration of the August
2000 rating decision in which his claim for service
connection for herpes simplex was denied. While not before
the Board at this time, this issue is also referred to the
RO.
The issue of entitlement to an initial rating in excess of 10
percent for right knee disability is addressed in the remand
that follows the order section of this decision.
FINDINGS OF FACT
1. All available information and evidence necessary for an
equitable disposition of the issue decided herein has been
obtained by the RO.
2. The veteran was denied service connection for right knee
disability in an unappealed rating decision of May 1982; the
denial was continued by the RO in an unappealed decision of
the RO in December 1994.
3. The veteran has not alleged that either of the prior
decisions was clearly and unmistakably erroneous.
4. An application to reopen the claim for service connection
for right knee disability was received on January 21, 1998.
CONCLUSION OF LAW
The requirements for an effective date prior to January 21,
1998, for a grant of service connection for right knee
disability have not been met. 38 U.S.C.A. §§ 5107(b), 5110
(West 1991 & Supp. 2000); Pub. L. No. 106-475, § 3(a),
114 Stat. 2096, 2098-99 (2000) (to be codified as amended at
38 U.S.C.A. § 5107); 38 C.F.R. §§ 3.102, 3.400 (2000).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, the Board notes that during the pendency of the
veteran's appeal but after the RO's most recent consideration
of the veteran's claim, the Veterans Claims Assistance Act of
2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was
signed into law. This liberalizing law is applicable to the
veteran's claim. See Karnas v. Derwinski, 1 Vet. App. 308,
312-13 (1991). It essentially eliminates the requirement
that a claimant submit evidence of a well-grounded claim, and
provides that VA will assist a claimant in obtaining evidence
necessary to substantiate a claim but is not required to
provide assistance to a claimant if there is no reasonable
possibility that such assistance would aid in substantiating
the claim. It also includes new notification provisions.
Specifically, it requires VA to notify the claimant and the
claimant's representative, if any, of any information, and
any medical or lay evidence, not previously provided to the
Secretary that is necessary to substantiate the claim. As
part of the notice, VA is to specifically inform the claimant
and the claimant's representative, if any, of which portion,
if any, of the evidence is to be provided by the claimant and
which part, if any, VA will attempt to obtain on behalf of
the claimant.
The record reflects that the veteran has been informed of the
requirements for the benefit sought on appeal. The RO has
obtained VA records pertaining to treatment of the veteran
for his disability. Moreover, as discussed below, the
pertinent facts in this case are not in dispute and the law
is dispositive. Therefore, there is no additional
information or evidence which could be obtained to
substantiate the veteran's claim. Accordingly, the veteran
will not be prejudiced as a result of the Board deciding this
claim without first affording the RO an opportunity to
consider the claim in light of the VCAA.
The veteran contends that service connection for a right knee
disorder should be granted from March 1, 1982, the date he
underwent a VA examination, because the presence of right
knee disability of service origin would have been
demonstrated at that time had the VA examination included an
MRI.
The record reflects that in a May 1982 rating decision, the
veteran's claim for service connection for a right knee
disorder was denied. He was notified of this decision and
his appellate rights that same month and did not appeal.
That decision became final. The veteran attempted to reopen
his claim in December 1994, and was informed by a letter from
the RO that same month, that his claim was being denied,
given that he had not submitted new and material evidence.
He again was informed of his appellate rights and did not
appeal. An application to reopen the claim for service
connection for right knee disability was received on January
21, 1998, and ultimately the RO determined that new and
material evidence had been received to reopen the claim and
then granted the reopened claim, effective January 21, 1998.
The foregoing facts are not in dispute.
As a result of the veteran's failure to appeal the May 1982
or December 1994 RO decision, those decisions became final
based on the evidence of record in the absence of clear and
unmistakable error. 38 U.S.C.A. § 7105 (West 1991);
38 C.F.R. §§ 3.104, 3.105, 20.200 (2000).
In order for a claim of clear and unmistakable error to be
valid, there must have been an error in the prior
adjudication of the claim; either the correct facts, as they
were known at the time, were not before the adjudicator or
the statutory or regulatory provisions extant at the time
were incorrectly applied. Russell v. Principi, 3 Vet.
App. 310, 313 (1992) (en banc).
Clear and unmistakable error is one of fact or law, that when
called to the attention of later reviewers compels the
conclusion, to which reasonable minds could not differ, that
the result would have been manifestly different but for the
error. When attempting to raise a claim of clear and
unmistakable error, a claimant must describe the alleged
error with some degree of specificity, and, unless it is the
kind of error, that if true, would be clear and unmistakable
error on its face, must provide persuasive reasons as to why
the result would have been manifestly different but for the
alleged error. Neither a claim alleging improper weighing
and evaluating of the evidence in a previous adjudication,
nor general, non-specific claims (including sweeping
allegations of failures to follow the regulations or to
provide due process), meet the restrictive definition of
clear and unmistakable error. Fugo v. Brown, 6 Vet. App. 40,
43-44 (1993).
Although the veteran has essentially alleged that service
connection for his right knee disability would have been
granted in the May 1982 decision if the VA examination in
1982 had included an MRI, this allegation of a failure in the
duty to assist is not a valid claim of clear and unmistakable
error and he has not otherwise alleged that there was an
error in either of the prior decisions.
The effective date of an award of compensation based on a
claim reopened after final disallowance is the date of
receipt of claim or date entitlement arose, whichever is
later. 38 U.S.C.A. § 5110(a) (West 1991); 38 C.F.R. §
3.400(a)(r) (2000). Since the veteran's reopened claim was
received on January 21, 1998, the proper effective date for
the grant of service connection is not earlier than that
date.
ORDER
Entitlement to an effective date prior to January 21, 1998,
for a grant of service connection for right knee disability
is denied.
REMAND
The VCAA is also applicable to the veteran's claim for an
initial rating in excess of 10 percent for his service-
connected right knee disorder. The record reflects that the
veteran last underwent a VA examination of his right knee in
September 1999. At that time, he complained of instability,
stiffness, and pain. Since then, the veteran has undergone a
partial medial meniscectomy of the right knee in May 2000,
and a right knee ACL (anterior cruciate ligament)
reconstruction in August 2000. Therefore, the Board believes
an additional VA examination is warranted to determine the
current degree of right knee disability.
Therefore, while the Board regrets the delay, this case is
REMANDED to the RO for the following:
1. The RO should obtain the names and
addresses of all medical care providers
(VA or non-VA), if any, who may possess
additional records pertinent to his
claim. When the requested information
and any necessary authorization are
received, the RO should attempt to obtain
a copy of all indicated records which are
not already of record.
2. If the RO is unable to obtain a copy
of any records identified by the veteran,
it should so inform the veteran and his
representative and request them to
provide a copy of the outstanding
records.
3. The veteran should then be scheduled
for a VA examination to determine the
nature and extent of all functional
impairment due to his service-connected
right knee disability. The claims folder
must be made available to and reviewed by
the examiner. Any indicated studies
should be performed.
In reporting the results of range of
motion testing, the examiner should
identify any objective evidence of
pain and the specific excursion(s)
of motion, if any, accompanied by
pain. To the extent possible, the
examiner should assess the extent of
any pain. Tests of joint movement
against varying resistance should be
performed. The extent of any
incoordination, weakened movement
and excess fatigability on use
should also be described by the
examiner. The examiner should also
express an opinion concerning
whether there would be additional
limits on functional ability on
repeated use or during flare-ups (if
the veteran describes flare-ups),
and, to the extent possible, provide
an assessment of the functional
impairment on repeated use or during
flare-ups. If feasible, the
examiner should assess the
additional functional impairment on
repeated use, during flare-ups, or
due to weakened movement, excess
fatigability, or incoordination in
terms of the degree of additional
range of motion loss. The examiner
should also assess the extent of any
locking, subluxation and lateral
instability present. Finally, the
examiner should provide an opinion
concerning the impact of this
disability on the veteran's ability
to work.
4. The RO should then undertake any
other development it determines to be
required to comply with the notice and
duty to assist provisions of the VCAA.
5. Then, the RO should readjudicate the
veteran's claim for a higher initial
rating for right knee disability. If the
benefit sought on appeal is not granted
to the veteran's satisfaction, he and his
accredited representative should be
furnished a supplemental statement of the
case and afforded an appropriate
opportunity to respond. The case should
then be returned to the Board for further
appellate consideration, if otherwise in
order.
By this REMAND the Board intimates no opinion, either legal
or factual, as to the ultimate determination warranted in
this case. No action is required of the veteran until he
receives further notice.
The veteran has the right to submit additional evidence and
argument on the matter the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
Shane A. Durkin
Member, Board of Veterans' Appeals